On 12 January 2018 four senior Supreme Court judges of India, Justice Kurian Joseph, Justice Jasti Chelameswar, Justice Ranjan Gogoi and Justice Madan Bhimrao Lokur held a press conference in New Delhi. All four expressed an unequivocal fear: the independence of Indian judiciary was under severe threat. They were concerned about the way the then chief justice of India (CJI), Deepak Misra, had constituted benches on various urgent national matters, from cases of institutional corruption to high-profile murders. According to these judges, the chief justice had allocated benches following his own or/and the government’s preferences. The recent activities of the CJI had cast, the four judges alleged, a heavy shadow over the fate of the independent judiciary and the future of democratic India.

This was as clear an indictment as one could have of the state of siege that is contemporary India. The present government under the Bharatiya Janata Party (BJP) has led a series of vicious attacks on minority populations ever since it came to power in 2014. Targeted lynching and the brutalisation of Muslim men, women and children have become normalised. Party members have publicly defended and, in some cases, feted the perpetrators. Prime Minister Narendra Modi has alternated between maintaining a studied silence and muttering occasional platitudes of peace. 

Dissenting voices – journalists, students, activists – have been attacked and in many cases killed. A virulent hate campaign, coupled with a calculated indifference to everyday acts of communally motivated violence, has washed over the country. Given this manufactured atmosphere of hostility fuelled by an incessant barrage of propaganda on social and mainstream media, it was perhaps not surprising to see these four judges calling this unusual press conference.

The proverbial straw that seemingly broke the camel’s back was the mysterious death of a judge, Brijgopal Harkishan Loya, in 2015. Before his death, Justice Loya had been presiding over a high-profile murder case with the Central Bureau of Investigation, the premier investigative body of the country. The prime accused in this case was Amit Shah, current home affairs minister of India, considered to be the second most powerful man in India after Modi. In 2017 the political journal The Caravan published the reports of a detailed investigation that revealed numerous discrepancies around Loya’s death. The family of the deceased judge initially questioned the government narrative and asked for an independent inquiry. 

They alleged that the judge had been offered an amount of 100 crores, or 1-billion rupees, to give a verdict in favour of Shah. When a public interest litigation (PIL) – an instrument in Indian law courts where people other than the ones directly involved, in other words concerned citizens, can file a suit on behalf of the public – was filed to investigate the circumstances of Loya’s death, Misra squashed the litigation, stating that “scurrilous lies” were being spread around Loya’s death. 

Just to put this in perspective, the Supreme Court had recently heard PILs on issues ranging from: 1) whether the national anthem should be played in movie theatres, 2) how to bring the Kohinoor diamond back from Britain, 3) demands to criminalise porn viewing and 4) mandatory yoga. 

In response to demands to set up a probe into Loya’s death, the CJI remarked that “motivated and frivolous PILs detract [sic] the court’s time from hearing genuine petitions”.

Yet if the press conference in 2018 appeared to be a watershed moment in responding to the murky practices of the apex court, it turned out to be a disappointment. The next chief justice, Gogoi, one of the four judges who had come out critiquing the state of the judiciary, soon appeared to be now toeing the line. He was accused of sexual harassment by a junior court assistant. The internal investigation was carried out by a bench he had set up (readers won’t miss the irony of a bench set up by the same person who is accused of the crime the bench is supposed to look into). It was riddled with procedural impropriety. Gogoi was acquitted. 

Moreover, he continued to allow the executive almost de facto powers in vetoing the appointment of judges who appeared to oppose the government. An example is the case of  Justice Akil Kureshi from the Gujarat High Court, who had been recommended by the Supreme Court collegium as the chief justice of Madhya Pradesh High Court but was appointed as the chief justice of the smaller Tripura High Court instead.  Another is that of Justice VK Tahilramani of Madras High Court, who resigned following a transfer recommended by the collegium. 

At the end of his 13-month tenure, Gogoi was awarded a seat in the nominated upper house of the parliament. 

These were precisely the issues over which the judiciary had been fighting with the ruling executive in 2014. The government and its allies sought to change the mode of recruitment of judges. They proposed the establishment of a body, the National Judicial Appointment Commission (NJAC), where the representation and authority of the executive, the law minister, would play a decisive role. The recruitment of judges is ordinarily carried out by a collegium or a panel of judges and is an independent body with little or no interference from the executive. 

The government, attacking the autonomy of the judiciary, had fired the first salvo almost immediately after it came to power. The judiciary had won that round when the NJAC was declared unconstitutional by the Supreme Court. But pliant figures like Misra and Gogoi – the latter having performed a volte-face from the 2018 press meeting – have increasingly made the need for this formal change redundant.

Conspicuously silent: The Supreme Court on Kashmir

The Supreme Court, through the tenure of this government, has shown alarming deference to the executive. Two landmark events provide grist to this mill. 

First, on 5 August 2019, the BJP government unilaterally revoked Article 370 from the constitution – an article designed in 1949 ensuring Kashmir’s autonomy as a unique state with its own constitution – and split the state into two Union territories, administrative units under the direct control of the central government. Legal practitioners and scholars have questioned the constitutionality of this move. 

A direct presidential order signed by the governor of the state, who is representative of the central government and not the people of the state, flouted all constitutional norms mandated for such a manoeuvre. It was a clear case of executive overreach, but consistent with the Hindu Right’s demand of “one nation, one constitution”. 

Since the inception of independent India the Rashtriya Swayamsevak Sangh (RSS), a paramilitary volunteer organisation and the ideological motor propelling the BJP, has rallied behind a chauvinistic concept of a Hindu India. And the status of Kashmir has played a crucial role in forging this exclusive nationalism. Acting on well-rehearsed rhetoric, the BJP government in 2019 finally forced on the demographically majority-Muslim state of Kashmir – besieged as it has been for years under the draconian Armed Forces (Special Powers) Act that suspends habeas corpus — integration into the new Hindu nation. 

The executive’s move is in direct contradiction of the asymmetric federalism of India where some states, considering their history of specific disadvantages or volatile political configuration, like Kashmir, have been given certain constitutionally mandated rights. 

This is an interesting moment when one considers that a functionally similar article in the constitution, Article 371, that allows the tribal states of the north-east frontier to retain their cultural autonomy, hasn’t been put under the same scrutiny by the RSS/BJP combine. The recent electoral success in this historically troubled frontier has ensured that the BJP maintains a strategic silence around asymmetric federalism here as opposed to Kashmir.

A year has passed. Despite the number of petitions submitted in the Supreme Court against the revocation of Article 370 in Kashmir, very little has been done to respond to such a serious political issue. The Supreme Court remains conspicuously silent as the constitution gets hacked from the inside. 

Next, on 9 November 2019, the Supreme Court gave its verdict on the disputed temple site Ayodhya, Uttar Pradesh, where the 500-year-old mosque Babri Masjid was razed to the ground on 6 December 1994 by the cadres of Rashtriya Swayamsevak Sangh. 

The court, in a bizarre twist of logic, acknowledged the crime of the destruction of the mosque but gave the party that was responsible for it permission to build a temple on the same site. A primary tenet of common law, “No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime”, was thus violated.

Most recently, in March and April 2020, when millions of migrant workers were desperately trying to return to their villages amid the raging Covid-19 pandemic, with scores dying on the way, a PIL was filed in the Supreme Court to “help” the migrant workers in this hour of deep distress. The court was, as is becoming the norm in most cases where the ruling government can be held accountable for its failures, happy to accept the submission made by the solicitor-general (legal representative of the government) who declared the despair of migrants, the visuals and documentary evidence of their weary travels, to be “fake news”. 

The Supreme Court, content with this submission, displayed a Nero-esque indifference to the plight of the workers. The absurdity of the tragedy is made all the more acute by the fact that the court in May showed unrivalled energy “monitoring the beautification” of a palace garden in Rajasthan. 

Undermining the 1949 constitution

But these are not sudden developments. 

The RSS has long criticised the Indian constitution as an alien product. The secular constitution drawn up in 1949 for the nascent nation was seen as a betrayal by this organisation, which proclaims India to be a “Hindu Rashtra” or Hindu nation. The constitution, for RSS, represents a “foreign” influence and does not address the core culture and essence of the Indian nation – in other words, its exclusive Hindu heritage. 

India, like South Africa, has one of the more progressive constitutions in the world. It is a product of the visions of early Indian leaders trying to work out possible futures of equality and justice in a newly independent nation. 

In many ways, the constitution is a document that encapsulates the excitement generated by the end of a colonial regime and the tumult of violence (the partition of the South Asian subcontinent based on religion and the early communist challenges to the Indian National Congress) marking that terminus. The Indian constitution, much like constitutions of many post-colonial states, sought to incorporate possible future contingencies and create structures of governance, without abandoning the larger project of social transformation. 

It marks a specific trajectory of post-colonial nations: a struggle between the radical demands of political and economic citizenship of a new nation, and the continuity of colonial legal and administrative structures that were established precisely to regulate, if not stymie, those demands. This is an exciting history that legal scholars are just beginning to write: a history of the tension inherent within postcolonial legal systems, and the promise of substantive freedom. 

The BJP government has used this tension masterfully in its selective evocation of the policing functions of the constitution. On the one hand, there is a constant iteration of the importance of the constitution and democracy, while on the other a hollowing out of the substantive principles of secularism and equity is practised. 

The BJP government, in this sense, follows the contemporary global phenomenon where we see channels of formal democracy being used continuously to advance authoritarian regimes. 

Lest we forget: all these governments, with leaders from Donald Trump to Modi, have been democratically elected. The compliance and complicity of the judiciary is a critical component of such democratic totalitarianism. DM/MC

Anandaroop Sen is a lecturer at the Department of Historical Studies at the University of Cape Town.